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Lucy, Esq.
Lucy, Esq., Attorney
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Okay, I got served for none payment of a Credit Card that I

Resolved Question:

Okay, I got served for none payment of a Credit Card that I reported stolen to the CC company Wells Fargo and they are now trying to collect that money when I paid the card off in 12-2010. I didn't file a poilce report so I'm not sure what to do. I also cut up the card once i paid it off and throw all of the statements away.
Submitted: 5 years ago.
Category: Legal
Expert:  Lucy, Esq. replied 5 years ago.

My name is XXXXX XXXXX I'd be happy to answer your questions today. I'm sorry to hear that this happened.

First, you must respond to the lawsuit. If you don't, the judge will enter a judgment against you, and you will have forfeited the right to defend yourself. That's important. Second, the bank has the burden of proving that you owe the debt. If you paid all amounts that you owed, that is a valid defense to the action. If you reported the card stolen, and charges were made after that, that's another defense. Banks keep statements for quite awhile. If you ever had access to Wells Fargo's website, you may still be able to log in and download statements from the relevant time period. If not, after you respond to the suit, you have a right to send them a Request for Production of Documents, demanding that they provide you with copies of all relevant charges and statements.

To file a response, the defendant goes through the complaint and admits or denies each allegation, or states that he lacks sufficient information to admit or deny the statement. Do not admit anything you're not sure of - if you don't know your old account number, and you don't have the statements, don't admit that the account number is XXXXX (I've actually seen companies put the wrong card number in the complaint). State that you don't know, and ask that they prove it. Then, at the bottom, you assert your defenses. Here are some examples that show what an Answer might look like (you would use the court caption as shown on the Complaint and Summons).

An Answer should also contain a certificate of service, usually printed at the bottom of the complaint after your signature (or you can attach a separate page). It usually says something like:
I, NAME, hereby certify that on, DATE, I served the above Answer on the plaintiff by mailing a copy, via first-class mail, postage prepaid, to ADDRESS.
Printed Name

Good luck.
Customer: replied 5 years ago.
Thanks, I just don't know what to do. My husband is freaking out about it.
Expert:  Lucy, Esq. replied 5 years ago.
I understand why he's upset - no one likes to see that they're getting sued. Start by seeing if you can get the statements online. Having something to actually do (sitting and printing the statements, reading through them, etc.) sometimes helps calm down. Then, start to work on your response. If you can get to a law library, you can get much better sample answers, because they'll be geared to Iowa. But, if you can't, as long as you get across that (1) You do not owe the debt, because (2) You paid what you owed, and (3) You reported the card stolen before the other charges were made, it should be OK.

You unfortunately probably will have to go to court - whenever there are disputed factual issues, the judge has to decide them after hearing evidence. But they have the burden of proof, and it sounds like the facts support your side. You also have the option of calling the lawyers for Wells Fargo and trying to negotiate, but it may be better to have the statements in front of you before you do that.
Customer: replied 5 years ago.
Okay, the law office is saying they have no record that it was reported stolen. I guess this is why they are sueing me because Wells is not saying that I didn't report it. I only called them on the phone and told them this so I know think I'm in a big bin. Do you think I can still win the case with no paper back up
Expert:  Lucy, Esq. replied 5 years ago.
A police report would be really, really helpful.

If you have a cell phone, you can subpoena the records to show when you called them to report it. The clerk of the court has blank subpoena forms you can get. You can also require them to produce their records - the bank actually keeps records of each call you make to customer service, who you talked to, etc. Ask them for copies of all letters/documentation sent to you, and all contact on your account, including telephone calls. If the employee you talked to dropped the ball and didn't report the card stolen, that's not your fault.

The thing that might hurt you is that you never disputed any of the charges with the company after you reported the card stolen, and there's no police report. But, gather up what you can and give it to the judge - that's really all you can do, unless you want to try to negotiate a settlement (I don't know what the total amount is, so that may not be an option).
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